EEOC Files First Suits Challenging Sexual Orientation Discrimination

EEOC

The U.S. Equal Employment Opportunity Commission has filed its first lawsuits challenging sexual orientation discrimination as unlawful sex discrimination, the federal agency announced today.

The EEOC, which ruled last year that sexual orientation discrimination is, by its very nature, discrimination because of sex, and therefore prohibited under federal law, has accused a health care center in Pennsylvania of discriminating against a gay man, and a pallet distribution company in Maryland of discriminating against a lesbian.

The EEOC charges that at Scott Medical Health Center, a pain-control and weight-loss clinic in Pittsburgh, a manager used antigay slurs to refer to a gay male telemarketer and “made other highly offensive comments about his sexuality and sex life,” according to an EEOC press release. The suit identifies the telemarketer as Dale Baxley.

According to the suit, filed today in U.S. District Court for the Western District of Pennsylvania, in 2013 telemarketing manager Robert McClendon “routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’”

Also, the suit states, upon learning that Baxley had a male partner, “McClendon made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’”

The suit alleges that the clinic’s president refused to take any action to stop the harassment. Baxley eventually resigned.

In the other suit, filed in U.S. District Court for the District of Maryland, Baltimore Division, the EEOC charges that in 2014 at an IFCO Systems location in Baltimore, night shift manager Charles Lowery subjected forklift operator Yolanda Boone, a lesbian, to continual harassment. He made statements such as “I want to turn you back into a woman,” “Are you a girl or a man?” and “You don’t have any breasts,” according to the suit.

“He also quoted biblical passages stating that a man should be with a woman and not a woman with a woman,” the suit continues. “On several occasions, he would grab his crotch while staring at Boone.”

Boone complained to a higher supervisor, as well as the company’s general manager and the human resources department — which resulted in her being called into a meeting and asked to resign, according to the suit. When she refused, the company fired her and called the police to escort her off the property.

Both suits seek punitive and compensatory damages for the employees, plus orders from the court for the companies to end harassment and discrimination and provide a work environment that is not hostile. In the IFCO suit, the EEOC also asks that the company post a notice to all employees that it will not discriminate on the basis of sex and will not retaliate against any employee for “engaging in protected activity,” such as complaining about harassment.

Both suits come after the EEOC attempted to reach a settlement with the employers, the agency notes in its press release.

The EEOC determined last year that discrimination based on sexual orientation is prohibited under Title VII of the U.S. Civil Rights Act of 1964, which bans discrimination based on sex. Sexual orientation as a concept cannot be understood without reference to sex, the agency noted at that time, and sexual orientation discrimination is often rooted in whether an employee complies with stereotypical gender norms. The agency had previously held that the sex discrimination provision also applies to gender identity.

“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” EEOC general counsel David Lopez said in the release. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

Tico Almeida, founder and president of Freedom to Work, which advocates for equal employment rights for LGBT people, issued a statement praising the EEOC’s action. “We applaud EEOC general counsel David Lopez and his outstanding litigation team for bringing these historic lawsuits putting the federal government on the side of gay and lesbian employees who were unlawfully denied a fair shot on the job,” Almeida said. “As our LGBT movement works our way back to the Supreme Court to argue that we are protected by the Civil Rights Act, we are hopeful that federal judges across the country will give strong deference to the EEOC’s strongly reasoned legal decisions in Baldwin vs. Foxx and Macy vs. Holder,” the cases that led to determination of the Title VII coverage.

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